R v Stewart - [2007] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v STEWART
[2007] SASC 167
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice Layton and The Honourable Justice Kelly)
16 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
APPEAL AND NEW TRIAL - APPEAL -- GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT
Appellant pleaded guilty to one count of indecent assault, two counts of assaulting police and one count of resisting police - indecent assault involved appellant grabbing the victim, a female police officer, from behind - police officer was acting in the course of her duties restraining a crowd - appellant’s finger penetrated the victim - sentencing judge accepted submissions that penetration was unintentional - the victim was traumatised and embarrassed as a result of the indecent assault - compassionate grounds relating to the illness of the appellant’s partner and her subsequent inability to care for their dependents were submitted to the sentencing judge - headsentence discounted by 15 per cent to two years for guilty plea with a non parole period of 12 months - the sentencing judge also took into account the appellant’s partner’s illness - sentence not suspended - on appeal, appellant sought leave to admit fresh evidence - leave granted - fresh evidence consisted of two medical reports and an affidavit relating to the deterioration of appellant’s partner’s health and the need for him to care for her and the appellant’s children - whether sentence should be varied in light of fresh evidence - whether sentence was manifestly excessive - whether trial judge erred in not suspending sentence. Held: by majority appeal dismissed.
Criminal Law Consolidation Act 1988 (SA) 18A, 353(4), referred to.
R v Brain (1999) SASR 92; R v Smith (1987) 44 SASR 587; R v C (2004) 89 SASR 270, applied.
R v Penno (2004) 236 LSJS 457, considered.

R v STEWART
[2007] SASC 167
Court of Criminal Appeal: Anderson, Layton and Kelly JJ
ANDERSON J:
Introduction

The appellant pleaded guilty to one count of indecent assault in respect of an incident for which he had earlier been charged with the offence of rape. He also pleaded guilty to two counts of assaulting police and one count of resisting police. All charges arose out of a series of incidents that occurred at more or less the same time.
The sentencing judge imposed one penalty for the offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The maximum penalty for the assault and resisting police offences are fines of $10,000 or $2,500 respectively or imprisonment for a term of two years or six months respectively. For the indecent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Stewart

Details

AGLC: R v Stewart [2007] SASC 167
Case: [2007] SASC 167
Decision Date: 16 May 2007

CaseChat Overview and Summary

The case of R v Stewart involved an appeal against the sentence imposed by the sentencing judge. The appellant, who had pleaded guilty to one count of indecent assault, two counts of assaulting police officers, and one count of resisting arrest, sought to challenge the severity of the sentence and the decision not to suspend it. The appellant also sought leave to introduce fresh evidence relating to the health of his partner, which he argued should have been taken into account in determining the sentence. The fresh evidence suggested that his partner’s health had deteriorated significantly, placing additional caregiving responsibilities on the appellant. The appeal raised three primary issues: whether the sentence was manifestly excessive, whether the trial judge erred in not suspending the sentence, and whether the sentence should be varied in light of the fresh evidence.

The court considered the nature of the offences, which involved an indecent assault on a police officer in the course of her duties, causing her considerable pain and emotional distress. The court also noted the appellant’s previous convictions for violent offences, typically related to alcohol consumption. The sentencing judge had imposed a sentence of two years imprisonment with a non-parole period of 12 months, taking into account the guilty pleas and the appellant’s efforts at rehabilitation. The judge declined to suspend the sentence, stating that doing so would send the wrong message to the community.

In assessing the appeal, the court first examined whether the sentence was manifestly excessive. The court found that the sentence was lenient given the circumstances and the need for deterrence. The court also considered whether the sentencing judge had erred in not suspending the sentence, noting that the judge had appropriately weighed the personal circumstances of the appellant against the need for deterrence and community protection. Finally, the court evaluated the fresh evidence regarding the appellant’s partner’s health. While the evidence showed a significant deterioration in her condition, the court concluded that it did not provide a sufficient basis to suspend the sentence. The court held that the sentence should stand as imposed by the sentencing judge.

The appeal was dismissed by the majority of the court. The court affirmed the sentence of two years imprisonment with a non-parole period of 12 months, and rejected the appellant’s arguments for a variation based on the fresh evidence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I will deal with the question of fresh evidence later in these reasons.Background facts The circumstances giving rise to the offences arise from a disturbance in a tavern at Elizabeth Downs. As a result of the disturbance some people had been arrested. Police were in attendance and effectively attempting to control the scene but there were members of the public, including those previously involved in this disturbance, still present at the scene. One of the police officers controlling the scene was a 30 year old female. She was in uniform and on duty at the relevant time. At some stage she was assaulted from behind by the appellant when he jabbed a finger or fingers between her legs and made contact with her vagina. The contact was sufficiently powerful to allow penetration of her vagina by the finger although against the resistance of her uniform trousers and underwear. The learned judge accepted the submissions of the appellant that any penetration of her vagina was not intended. Nevertheless the appellant's action caused the officer considerable pain and resulted in emotional distress. It was a serious assault on a police officer in uniform and designed to harass and embarrass her in the execution of her duties. One of the other police officers at the scene was the partner of the female officer attacked. He has also provided a victim impact statement and speaks of the distress this incident caused them both. After the appellant had been arrested for the indecent assault, he assaulted the same female police officer and also a male police officer. He then resisted another male officer when he was taken to the police station. The appellant had previous convictions for violence, having been sentenced to a term of imprisonment for three months for assault occasioning actual bodily harm in 1990, as well as being sentenced to 12 months imprisonment with a non-parole period of nine months for robbery and two counts of assault occasioning actual bodily harm in 1999. He was later given a two year suspended sentence for another assault occasioning actual bodily harm in 2000. The learned judge allowed a discount of 15 per cent for the pleas which he described as being entered "at the eleventh hour". There was no argument advanced as to the appropriateness of this discount. The appellant is of Aboriginal descent. His offences in the past have been related to alcohol and usually follow from binge drinking. He has been in a relationship with his partner since 1990. That relationship seems to have been a significant restraining influence upon his lifestyle. He has generally been able to keep out of trouble during this relationship. At the time of sentencing he had been subject to a bail agreement with conditions which the judge described as similar to home detention bail. The judge was impressed by steps taken by the appellant to rehabilitate himself and he indicated that he took this into account in reducing substantially the non-parole period. The learned judge considered the question of suspension of the sentence but in the final analysis found that no good reason existed for him to suspend the sentence. In particular he said:For me to have directed that your sentence be suspended would have sent a wrong message to the community in which women police officers are called upon to play an important role.

Evidence

Evidence Before The Court

His Honour went on to say that the non-parole period was considerably less than it might otherwise have been having regard to the interests and ill-health of his partner, but also having regard to the appellant's attempts at rehabilitation. He said:The non-parole period is considerably less than it might otherwise have been, having regard to the interests (and ill-health) of your partner and to the interests of the seven children, including two stepchildren, who are, to varying degrees, dependent upon you.Fresh evidence The appellant now seeks to put before this Court further evidence relating to the medical condition of his partner. The appellant's partner has been diagnosed as having a form of lupus which manifests itself in causing extreme tiredness. The medication that she takes to combat the illness makes her feel ill. Her medical condition has effectively transferred the responsibility of looking after the two youngest children in particular to the appellant. The sentencing judge knew of the appellant's partner's illness but was not aware of the full extent of her disability at the time of sentencing. The information available to the sentencing judge was contained in a pre-sentence report, in a letter of support, and in the submissions of Mr Coates who appeared as counsel for the appellant at that time. The pre-sentence report is dated August 2006 and it states:[Ms B] has been diagnosed with lupus which is a chronic autoimmune disease, symptoms of which include joint pain, extreme fatigue and skin rashes. Her health has deteriorated since the birth of her youngest child but she told me that the defendant has always been very involved in raising their children and so his current commitment is merely a slight increase to his previous level of involvement. It is apparent that this information was provided by Ms B when she was interviewed for the purpose of the pre-sentence report. Whilst it may not have been a complete account of her illness and disabilities, it nevertheless gave the judge a reasonable picture of her illness and its effects on the family. In addition, the sentencing judge had before him a report from the Aboriginal Sobriety Group dated 29 August 2006. That report states:Kelvin's partner [Ms B] has been diagnosed as having a form of Lupus, which has had an effect on her everyday health and makes her very tired and the medication makes her feel ill. This has put the responsibility of looking after the two youngest children in particular on Kelvin.Kelvin has found this challenging to say the least, but it would be impossible for [Ms B] to resume full responsibility at this point in her condition. She simply needs Kelvin to take the major responsibility for caring for the children and a lot of the home duties. Having seen [Ms B] when she is on her medication, she does not have the energy to carry out home duties without Kelvin's help. This report gave the judge a good indication of the difficulties Ms B was having in dealing with her illness and managing the care of the children.

Decision

Reasons for decision

In this case the sentencing judge properly considered the topic of whether it was a relevant factor in sentencing the appellant to take account of his partner's ill health. Moreover, as the respondent contends, the evidence is still to some extent speculative as to what might happen in the future regarding her health. Conclusion The appellant's actions were foolhardy and irresponsible and caused considerable discomfort and embarrassment to a police officer. As I indicated earlier she and other police officers went to the hotel to assist to quell a disturbance there. The learned judge is quite correct in my view, in his comments, that it would send a wrong message to the community if an incident such as this was dealt with by a suspended sentence. The question is whether the further information by way of fresh evidence is sufficient to either find good reason for suspension or for reducing the non-parole period. The learned judge did take into account the ill health of the appellant's partner and indicated that that aspect along with others was instrumental in his reducing the non-parole period. He specifically said that non-parole period was considerably less than what it might otherwise have been. The non-parole period fixed in all the circumstances is lenient. It is my view that the element of deterrence to other members of the community who might be minded to interfere with a police officer in the course of his or her duties, outweighs the personal considerations in this matter even if the further evidence is taken into account. I would therefore not reduce the non-parole period. I have indicated that the judge was correct in his assessment that there was, at the time of sentencing, no good reason to suspend the sentence. Having regard to the additional information it is my opinion that it is still not sufficient to suspend the sentence. I would therefore dismiss the appeal. This is an appeal against sentence. The appellant pleaded guilty to one count of indecent assault, two counts of assault police, and one count of resisting arrest. All of the offences were committed on the one occasion and the sentencing Judge imposed one penalty for the offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The sentencing Judge began with a starting point of two years and four months imprisonment, then reduced it by 15 percent for the guilty pleas, with a resultant sentence of two years imprisonment. A non-parole period of 12 months was set. The sentencing Judge declined to suspend the period of imprisonment. There are three essential grounds: First, that the total sentence was manifestly excessive; secondly that the sentencing Judge erred in not suspending the sentence of imprisonment; and thirdly that the sentence should be varied by reason of fresh evidence sought to be advanced. The fresh evidence concerned the significant deterioration of the health of the appellant’s partner and the resultant inability of her to appropriately care for their seven children.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.